Citation Nr: 1753552 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-05 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to May 1970. He was awarded the National Defense Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board notes that the RO had originally adjudicated the Veteran's claim as entitlement to service connection for posttraumatic stress disorder (PTSD), depression, and anxiety. However, in an October 2010 Notice of Disagreement, the Veteran withdrew his claim of entitlement to service connection for PTSD and stated that he wished to pursue his claims of entitlement to service connection for depression and anxiety. The medical evidence of record also reveals diagnoses of various acquired psychiatric disorders. Accordingly, the issue has been amended as reflected on the cover page. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran asserts that service connection for a psychiatric disorder is warranted as a result of his duties in service. He specifically asserts that he was under a significant amount of stress due to his intelligence assignments as part of the Army Security Agency. He endorsed psychiatric symptoms, including sleep difficulties, nervousness, loss of appetite, headaches, and weight loss, during service and afterwards. See February 2017 Board Hearing Transcript. The Veteran also reported that he was bullied during basic training regarding his speech impediment, and that he felt humiliated. He also felt guilty and depressed when he recognized friends' names that had been killed in combat. See October 2009 Correspondence. Although service treatment records are absent complaints of or treatment for psychiatric symptoms, service personnel records document that the Veteran did serve part of the Army Security Agency. Post-service treatment records also show diagnoses of and treatment for dysthymic disorder, major depressive disorder, generalized anxiety disorder, and panic disorder. The Veteran has not yet been afforded a VA examination in connection with his service connection claim for an acquired psychiatric disability. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Given the Veteran's reports attributing his current condition to service, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of the claim. See McLendon, 20 Vet. App. 79, 81 (2006). Updated VA treatment records should also be requested on remand. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from January 2010 to the present. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. After completing the above actions and associating any additional records with the claims file, schedule the Veteran for a VA mental disorders examination. The Veteran's claims file, including a copy of this Remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. Based on this review, the examiner should address each of the following questions: a. Identify all currently diagnosed mental health disabilities. In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; i.e., from February 2009 onward. The psychiatric disorder need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. The Board notes that the record shows past diagnoses of generalized anxiety disorder, panic disorder, dysthymic disorder, bipolar disorder, and major depressive disorder. All of these disorders should be considered and discussed, in addition to any other disorders that may be found. If any specific disorder is ruled out, a complete explanation must be provided. That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence. So, for example, if the examiner were to find that depressive disorder is not a current disability, then the explanation should include a discussion of the medical records, as well as the Veteran's lay statements regarding his condition. If the examiner determines that any prior diagnosis cannot be validated, she or he should explain why. b. With respect to each diagnosed psychiatric disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disability arose during service or is otherwise related to any incident of service. Please explain why or why not. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).